Error in penalty notice

I have edited a POPLA appeal from successful ones elsewhere on this site. Could those who know about these things have a look? This first bit is not for POPLA, but a preamble.

I am the registered keeper, and have never revealed the driver, who is the only person who uses the vehicle. It is kept and insured at the driver’s address.

The alleged contravention occured when the driver parked as outlined below, but could not find information about how to pay. The driver had used the car park several times before the current operator took over earlier this year.

The unsigned letter from the operator of 18 October 2017 apparently dismissing the appeal does not actually say that the appeal has failed. It merely states that the appeal process has ended, and gives me a POPLA code. It also says:

“The parking charge notice was issued to your vehicle because you (my name and address were on the letter) failed to purchase a valid ticket. It is the driver’s responsibility to ensure that they have read and understood the terms and conditions for using the car park.”

II was 200 miles away at the time of the alleged contravention, and so could not purchase a valid ticket, read and understand the terms and conditions for using the car park, or enter into a contract.

What follows has been edited from successful appeals to POPLA, using in the main the narrative the appellants used.

This bit is the draft appeal for POPLA

1. A compliant Notice to Keeper was never served - no keeper liability can apply.

The Notice to Keeper is not compliant with the Protection of Freedoms Act 2012 (POFA)

a The keeper is not the registered keeper.

b I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

c As the registered keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4.

d Henry Greenslade, a former POPLA lead adjudicator, said

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time.

The burden of proof rests with the operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.


e The signs in this car park were not prominent, clear or legible from all parking spaces.

f There is no evidence of landowner authority.

g The parking charge does not reflect genuine pre-estimate of loss.


2. The signs in this car park were not prominent, clear or legible from all parking spaces.

At the time of the alleged contravention, the signs were sporadically placed, obscured and hidden from view in some areas, particularly from those areas where the vehicle was parked.

The driver is adamant that a sign at the approach to the entrance was so small as to be unremarkable and unreadable, and that there was confusing clutter of plastic bags covering ticket machines inside the entrance.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A notice is not imported into the contract unless brought home so prominently that the party must have known of it and agreed terms beforehand.

The only parking spaces were on the top floor. The driver met another driver there, also searching for ways of paying for his stay. They walked together from the top floor, down a ramp to the one beneath, then down another ramp to the floor beneath that without finding any instructions or ways to pay. They then left the car park down a stairwell, which also had no signs in it.

Revisiting the car park at my request shortly after the Notice To Keeper arrived, the driver revisited the car park and found many more signs in place that had not been there before.

The undated, untimed images sent with the operator’s letter of 18 October 2017 are clearly not those in place at the time of the allgeged contravention. The as new condition of the screws and the general cleanliness of the signs suggest that they were placed after a recent increase in tarrif. The fee for two hours parking (checked on the operator's website at the time of their parking charge notice) on the relevant date was £3, as evidenced in my appeal letter to the operator. The signs in the images show £3.50.

Therefore, they cannot be used to show what and where the signage was at the time of the alleged contravention.

The operator summarises the Beavis case, which turned on specific facts relating only to the signs at a site and the unique interests and intentions of the landowners. The Supreme Court were keen to point out the decision related to that car park and those facts only.

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Areas of this site at the time of the alleged contravention were unsigned and there were no full terms seen at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more like the signage in POPLA decision 5960956830. The assessor said in her view that the terms appeared to be displayed inadequately, and put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the parking charge itself.

Furthermore, if the operator relies on the signage as currently (October 2017) installed in the car park, and not that appertaining in August 2017, the parking charge penalty wording will still not meet Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'.

A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a separate lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast.

The images sent by the operator show that they do not align with the Red Hand Rule. The penalty charge warning is at the bottom of a large sign, in a similar if not the same font, and smaller size. What looks like a supporting narrative to the penalty is smaller still, and unreadable from a vehicle, and diffcult to read close up.

The Consumer Rights Act 2015 states there is there is a requirement for transparency.

A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

A successul POPLA appeal about a driver not seeing the terms found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to, and cannot have breached, an unknown contract because there is no contract capable of being established.

I put the operator to strict proof of how their signs appeared on the day the alleged contravention took place from the driver's perspective. Equally, I require this operator to show how the approach and entrance signs in place in August appeared from a driver's seat, not stock examples of the sign in isolation/close-up.

I submit that full terms simply could not be read from a car before parking and stock examples of close-ups of the signage will not be sufficient to disprove this. There was no contract nor agreement on the parking charge at all as the driver did not have a fair opportunity to read terms.

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

The operator has not made clear whether it is the owner of the car park, or operating it for a landowner.

Its website says: “Our clients vary from large established funds and organisations to independent property developers and land owners all of which rely on our expertise to successfully operate their property and provide our car park management services.”

This says to me that they are contracted to the landowner.

The BPA Code of Practice requires the parking company to have clear authorisation from the landowner, if it is not itself the landowner, as to its role in relation to the parking control and enforcement.

If the point is specially raised by an appellant in an appeal, then the operator has to address it by producing such evidence as it believes refutes a submission that it has no authority. It is for the operator to demonstrate that it has authority, and a mere statement to the effect that it has a contract will not be sufficient.

The operator has not produced any evidence to demonstrate that it is the landowner; or, that it has the authority of the landowner to issue parking charge notices at this site.

I require that they produce an unredacted copy of the contract with the landowner. The contract and any site agreement or user manual setting out details including exemptions - such as any genuine customer or genuine resident exemptions or any site occupier's right of veto charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name. Legal action regarding land use disputes is generally a matter for a landowner only.

Evidence of the various restrictions which the landowner has authorised can give rise to a charge and how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Likewise, if the car park is owned by the operator, then evidence to that effect is required.

4. Genuine pre-estimate of loss

The parking charge is “perverse” under the Consumer Protection Act, and does not reflect genuine pre-estimate of loss.

The parking charge appears to be a sum sought for liquidated damages, in other words, compensation agreed in advance. Accordingly, the charge must represent a genuine pre-estimate of the loss any breach may cause.

The operator must show that the charge sought is a genuine estimate of the potential loss caused by the parking breach, in this case, the driver’s failure to pay for parking. The actual time in the car park was said by the operator to be 1 hour and 49 minutes, so depriving the operator of the then tariff for two hours (£3). The tariff for all day parking was £5, and a season ticket well under the parking charge.

A POPLA assessor adjudged that once an appellant submits that the parking charge is not a genuine pre-estimate of loss, the onus is on the operator to produce some explanation or evidence to tip the balance in its favour.

A list of general operational costs are not losses caused by the appellant’s alleged breach.

Given the busy-ness of the city centre car park, the time of the alleged contravention (the middle of a day just before the start of a school term when parents or carers of schoolchildren could be expected to shop for school items), a parking space could reasonably be expected to be re-occupied quickly.

The loss to the operator is thefore the cost of 1 hour 49 minutes of parking.


ends

Thanks. Helpful.

I am doing what Umkmaas suggested a while back - throw everything at POPLA . Umkomaas has recommended finding a more recent example of an appeal.

A successful appeal a month ago has been edited to fit my case.


http://forums.moneysavingexpert.com/showthread.php?t=5714955

I have edited, shortened and cleaned up my original draft and invite the community to comment.


I am writing to challenge a parking charge notice received for parking at car park on xx/xx/2017. POPLA code xxxxxx

I submit that

There is no compliance with POFA in that:

A compliant notice to keeper was never served, POFA Conditions1 and 4 and associated BPA code of practice have not been met: there is no evidence of landowner authority, and signage was inadequate.

There is no genuine pre-estimate of loss.


1. No compliance with POFA.


A compliant Notice to Keeper was never served - no keeper liability can apply.
The Act says that “the term ‘keeper’ means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper.”

The driver is the keeper: the vehicle is insured and kept at the keeper’s home address, not mine. The keeper has sole use of the vehicle. The keeper has not been named by the appellant, as I am entitled to do.

The keeper has therefore not been served with a Notice to Keeper.

Furthermore, no evidence has been produced that POFA Conditions 1 (right to enforce unpaid parking charges) and 4 (parking signage) have been met. See points 2 and 3 below


2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

The operator has not produced any evidence to demonstrate that it is the landowner; or, that it has the authority of the landowner to issue parking charge notices at this site.

The BPA Code of Practice requires the parking company to have clear authorisation from the landowner, if it is not itself the landowner, as to its role in relation to the parking control and enforcement.

If the point is specially raised by an appellant in an appeal, then the operator has to address it by producing such evidence as it believes refutes a submission that it has no authority. A statement to the effect that it has a contract will not be sufficient.

I require that the operator produces an unredacted copy of the contract with the landowner. The contract, and any site agreement or user manual setting out details including exemptions, is key evidence to define what this operator is authorised to do.

It cannot be assumed, just because an agent is contracted to merely put some signs up and issue parking charge notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name. Legal action regarding land use disputes is generally a matter for a landowner only.

3. The signs in this car park were not prominent, clear or legible from all parking spaces.

The operator sent undated, untimed images of signage purporting to be prominent and clear with its letter of 18 October 2017 which acknowledged the appellant’s appeal. The signage cannot be that in place at the time of the alleged contravention.

I submit that the general appearance of the signs suggest that they were placed in the car park after a recent increase in tariff. The fee for two hours parking on the relevant date (checked on the operator’s website at the time of the parking charge notice) was £3, as evidenced in my appeal to the operator. The signs in the operator’s images show another rate.

Furthermore, the operator in its 18 October letter did not deny the charge for parking for that period on the day was £3, and so it is submitted that their images cannot be used to show what and where the signage was at the time of the alleged contravention.

I put the operator to strict proof of how their signs appeared from the driver's perspective on the day (xx August 2017) of the alleged contravention. Equally, I require the operator to show how the approach and entrance signs in place on that day appeared from a driver's seat.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. I therefore submit that full terms could not be read from a car before parking and stock examples of close-ups of the signage will not be sufficient to disprove this. There was no contract nor agreement on the parking charge at all as the driver did not have a fair opportunity to read terms.


The driver is adamant that a sign high up at the approach to the entrance was so small as to be unremarkable and unreadable, and that there was confusing clutter of plastic bags covering ticket machines inside the entrance.

The only parking spaces were on the top floor. The driver met another driver there, also searching for ways of paying for his stay. They walked together from the top floor, down a ramp to the one beneath, then down another ramp to the floor beneath that without finding any instructions or ways to pay. They then left the car park down a stairwell, which also had no signs in it, and went their own ways.

Revisiting the car park at the apellant’s request, the driver revisited the car park and found many more signs in place that had not been there before.

A successful POPLA appeal about a driver not seeing the terms found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to, and cannot have breached, an unknown contract because there was no contract capable of being established.

This case is similar to the signage in POPLA decision 5960956830, where the Assessor found as fact that the the operator’s signs would not be clearly visible from a parking space.

4. Genuine pre-estimate of loss

The parking charge is “perverse” under the Consumer Protection Act, and does not reflect genuine pre-estimate of loss.

The parking charge appears to be a sum sought for liquidated damages, in other words, compensation agreed in advance. Accordingly, the charge must represent a genuine pre-estimate of the loss any breach may cause.

A POPLA assessor adjudged that once an appellant submits that the parking charge is not a genuine pre-estimate of loss, the onus is on the operator to produce some explanation or evidence to tip the balance in its favour. A list of general operational costs are not losses caused by the appellant’s alleged breach.

The operator must show that the charge sought is a genuine estimate of the potential loss caused by the alleged parking breach. The actual time in the car park was said by the operator to be 1 hour and 49 minutes, so depriving the operator of the then undisputed tariff for two hours (£3). The tariff for all day parking was £4.50, and a season ticket £85.

Given the busy-ness of the city centre car park, the time of the alleged contravention (the middle of a day just before the start of a school term when parents or carers of schoolchildren could be expected to shop for school items), the parking space could reasonably be expected to be re-occupied quickly.



I therefore invite you to allow the appeal.

Yours, etc
ends